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THE NEW YORKER, APRIL 10, 2017
o enders than ever before, for longer
than ever before, and that is the real
reason our prison population is so high."
In fact, Pfa argues, drug convic-
tions are a distinctly secondary factor
in prison growth. During the great wave
of incarceration---generally thought
to have begun around , and crest-
ing about three decades later---state
prisons added something like a mil-
lion inmates, with about "half that
growth coming from locking up more
people convicted of violence," Pfa cal-
culates. Nonviolent drug o enses ac-
counted for only around a fifth of the
new incarcerations.
What's more, many of the drug con-
victions were meant to be what Pfa
calls "pretextual attacks on violence."
Violent crimes that are associated with
drug dealing are more di cult to pros-
ecute than drug o enses themselves,
which usually involve hard evidence
rather than the testimony of witnesses.
This argument sets o some suspicious-
skeptical alarms, since it seems cousin
to the idea that we might as well lock
'em up for drugs as for anything else,
since, if we didn't, "they" would be com-
mitting violent o enses anyway. "It is,
of course, completely fair to debate the
morality . . . of using drug charges to
tackle underlying violence," Pfa ob-
serves, to his credit. He accepts that
"blacks are systematically denied ac-
cess to the more successful paths to
economic stability," and therefore "face
systematically greater pressure to turn
to other alternatives." But he also makes
a more complicated argument, follow-
ing recent sociological research: it's not
that the prohibition of drugs attracts
crime, which then produces violence;
it's that violence thrives among young
men deprived of a faith in their own
upward mobility, making drug dealing
an attractive business. In plain English,
young men without a way out of pov-
erty turn to gangs, and gangs always
turn to violence. Since e cient drug
dealing is, by its illicit nature, likely
to involve violence, those accustomed
to violence are drawn to drug deal-
ing. One sees the logic: Lucky Luciano
and Al Capone weren't ambitious
street kids who chose bootlegging as
a business, and were then compelled
to become gangsters to pursue it, as in
"Boardwalk Empire." They were al-
ready cadet gangsters, who saw that
their acquired skills lined up neatly
with those demanded by bootlegging.
And so the war on drugs, however
misguided as social policy, was not,
Pfa insists, a prime mover of the ep-
idemic of incarceration---the numbers
just aren't there. Even in New York
State, famous for its Draconian "Rocke-
feller laws," the decline in the number
of inmates imprisoned for drug o enses
in the past fifteen years has been dra-
matic---without changing the face, or
the fact, of mass incarceration. Pfa
calls this his core claim: "If we define
the people in prison as a result of the
war on drugs to be those serving time
for a drug conviction, then that war
simply hasn't sent enough people to
state prisons for it to be a major en-
gine of state prison growth."
What about mandatory sentences?
Pfa notes that these outsized punish-
ments are given to a very small part of
the actual prison population. Most new
inmates are serving relatively short sen-
tences. This, Pfa observes, is essen-
tially good news. "Prison admissions
are a flow, not a stock," he writes. "They
depend far more on choices made today
than on the lingering e ects of thou-
sands of past decisions." Pfa deals with
the issue of for-profit prisons with sim-
ilar statistical e ciency: even if private
prisons were banned tomorrow and all
their inmates released, the prison pop-
ulation would drop by, at most, eight
per cent. The numbers just aren't there.
S for the madness of
American incarceration? If it isn't
crazy drug laws or outrageous sentences
or profit-seeking prison keepers, what
is it? Pfa has a simple explanation:
it's prosecutors.They are political crea-
tures, who get political rewards for lock-
ing people up and almost unlimited
power to do it.
Pfa , in making his case, points to a
surprising pattern. While violent crime
was increasing by a hundred per cent
between and , the number of
"line" prosecutors rose by only seven-
teen per cent. But between and
, while the crime rate began to fall,
the number of line prosecutors went
up by fifty per cent, and the number of
prisoners rose with it.That fact may ex-
plain the central paradox of mass incar-
ceration: fewer crimes, more criminals;
less wrongdoing to imprison people for,
more people imprisoned. A political
current was at work, too. Pfa thinks
prosecutors were elevated in status by
the surge in crime from the sixties to
the nineties. "It could be that as the o -
cials spearheading the war on crime,"
he writes, "district attorneys have seen
their political options expand, and this
has encouraged them to remain tough
on crime even as crime has fallen."
Meanwhile, prosecutors grew more
powerful. "There is basically no limit to
how prosecutors can use the charges avail-
able to them to threaten defendants,"
Pfa observes. That's why mandatory-
sentencing rules can a ect the justice
system even if the mandatory minimums
are relatively rarely enforced. A defen-
dant, forced to choose between a thirty-
year sentence if convicted of using a
gun in a crime and pleading to a lesser
drug o ense, is bound to cop to the
latter. Some ninety-five per cent of
criminal cases in the U.S. are decided
by plea bargains---the risk of being
convicted of a more serious o ense and
getting a much longer sentence is a
formidable incentive---and so prose-
cutors can determine another man's
crime and punishment while scarcely
setting foot in a courtroom. "Nearly
everyone in prison ended up there by
signing a piece of paper in a dingy con-
ference room in a county o ce build-
ing," Pfa writes.
In a justice system designed to be
adversarial, the prosecutor has few ad-
versaries.Though the legendary Gideon
v. Wainwright decision insisted that
people facing jail time have the right
to a lawyer, the system of public de-
fenders---and the vast majority of the
accused can depend only on a public
defender---is simply too overwhelmed
to o er them much help. (Pfa cites
the journalist Amy Bach, who once
watched an overburdened public de-
fender "plead out" forty-eight clients
in a row in a single courtroom.)
Meanwhile, all the rewards for the
prosecutor, at any level, are for making
more prisoners. Since most prosecu-
tors are elected, they might seem re-
sponsive to democratic discipline. In
truth, they are so easily reëlected that
a common path for a successful pros-
ecutor is toward higher o ce. And the